dismissed EB-1C Case: Marketing And Product Support

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U.S. Department of HomeJand Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
U.S. Citizenship
and Immigration
Services
FILE:
EAC 05 14251670
Office: VERMONT SERVICE CENTER Date: APR 012M?
INRE: Petitioner:
Beneficiary:
PETITION: Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to
Section 203(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(1)(C)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision ofthe Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~~~~Rob ~/i;nn, Chief
Administrative Appeals Office
www.uscis.gov
Page 2
DISCUSSION: The preference visa petition was denied by the Director, Vennont Service Center. The
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner is a Delaware corporation engaged in providing marketing and product support services. It
seeks to employ the beneficiary as its sales and support manager. Accordingly, the petitioner endeavors to
classify the beneficiary as an employment-based immigrant pursuant to section 203(b)(1)(C) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(C), as a multinational executive or
manager. The director determined that the petitioner failed to establish that it would employ the beneficiary
in a managerial or executive capacity and denied the petition.
On appeal, counsel disputes the director's findings and submits a brief in support of her arguments.
Section 203(b) of the Act states in pertinent part:
(1) Priority Workers. -- Visas shall first be made available ... to qualified immigrants who
are aliens described in any of the following subparagraphs (A) through (C):
* * *
(C) Certain Multinational Executives and Managers. -- An alien is described
in this subparagraph if the alien, in the 3 years preceding the time of the
alien's application for classification and admission into the United States
under this subparagraph, has been employed for at least 1 year by a firm or
corporation or other legal entity or an affiliate or subsidiary thereof and who
seeks to enter the United States in order to continue to render services to the
same employer or to a subsidiary or affiliate thereof in a capacity that is
managerial or executive.
The language of the statute is specific in limiting this provision to only those executives and managers who
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity,
and who are coming to the United States to work for the same entity, or its affiliate or subsidiary.
A United States employer may file a petition on Form 1-140 for classification of an alien under section
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this
classification. The prospective employer in the United States must furnish a job offer in the form of a
statement which indicates that the alien is to be employed in the United States in a managerial or executive
capacity. Such a statement must clearly describe the duties to be performed by the alien.
The primary issue in this proceeding is whether the beneficiary would be employed in the United States in a
managerial or executive capacity.
Section 101(a)(44)(A) of the Act, 8 U.S.C. § 1IOl(a)(44)(A), provides:
The tenn "managerial capacity" means an assignment within an organization m which the
employee primarily--
Page 3
(i) manages the organization, or a department, subdivision, function, or
component of the organization;
(ii) supervises and controls the work of other supervisory, professional, or
managerial employees, or manages an essential function within the
organization, or a department or subdivision of the organization;
(iii) if another employee or other employees. are directly supervised; has the
authority to hire and fire or recommend those as well as other personnel
actions (such as promotion and leave authorization), or if no other employee
is directly supervised, functions at a senior level within the organizational
hierarchy or with respect to the function managed; and
(iv) exercises discretion over the day-to-day operations of the activity or function
for which the employee has authority. A first-line supervisor is not
considered to be acting in a managerial capacity merely by virtue of the
supervisor's supervisory duties unless the employees supervised are
professional.
Section 101(a)(44)(B) of the Act, 8 U.S.c. § 1101(a)(44)(B), provides:
The term "executive capacity" means an assignment within an organization In which the
employee primarily--
(i) directs the management of the organization or a major component or function
of the organization;
(ii) establishes the goals and policies of the organization, component, or
function;
(iii) exercises wide latitude in discretionary decision-making; and
(iv) receives only general supervision or direction from higher level executives,
the board of directors, or stockholders of the organization.
In support of the petition, the petitioner submitted a statement dated April 14, 2005, which contained the
following description ofthe beneficiary's proposed responsibilities:
• Operations Management: Oversee all day-to-day aspects ofU[.]S[.] operations.
• Personnel Management: Hiring, firing, and day-to-day oversight of staff, including
directing sales managers and representatives;
• Specialized Contract Oversight: Oversee and coordinate large government classified
contracts;
Page 4
• Positioning and Launching: Directly responsible for the positioning and launching of [the
petitioner], responsible for the operational management and customer support of [the
petitioner's] product range;
• Quality Control: Carry out inspection and testing of products imported from the United
Kingdom to ensure that the highest standards of quality are maintained. Manage diagnosis
and repair of equipment determined faulty by customers;
• Efficiency and Sales: Optimize company efficiency and increase sales; and
• Liaison: Liaise with the president of [the foreign entity] on position and launching [a] 3[-]
year new product strategy and marketing plan.
On January 3, 2006, Citizenship and Immigration Services (CIS) issued a request for additional evidence
(RFE) instructing the petitioner to provide documentation to assist it in determining the beneficiary's
employment capacity in the proposed position in the United States. The petitioner was asked to provide a
detailed breakdown of the beneficiary's proposed duties including the number of hours the beneficiary would
devote to each duty on a weekly basis. The petitioner was also asked to provide an illustration of its
management and personnel structures, identifying the job titles and job duties of each subordinate employee.
The RFE specifically noted that if contract labor is used to perform any of the petitioner's functions, adequate
documentation must be submitted to identify the contractors used and the actual services performed. The
petitioner was also asked to provide its tax and payroll documentation.
The petitioner's response included an organizational chart, which named the two employees in the two
positions above the beneficiary as well· as the two positions subordinate to the beneficiary. The petitioner
further explained that the beneficiary's position is the senior-most position in the U.S. entity. Although the
petitioner provided a copy of the beneficiary's employment contract, which contained an overview of the
beneficiary's responsibilities, none of the submissions directly addressed CIS's request for a detailed hourly
breakdown of the beneficiary's duties. The petitioner also provided its payroll documents and the W-2
statements issued in 2005, showing that the beneficiary and his two direct subordinates were full-time
employees of the petitioning entity during the time the Form 1-140was filed.
Mter reviewing the petitioner's response to the RFE, the director issued a decision dated April 3, 2006,
denying the petition. While the director was correct in his ultimate conclusion, several of his observations
suggest an erroneous interpretation of the statutory requirements and must be addressed at this time. First, the
director commented on the duties of the beneficiary's subordinates, finding that both employees appear to be
performing the "mundane duties of the organization." However, there is no explanation as to what is meant
by "mundane," as this term in not employed in any way in the relevant statute or regulations. The purpose of
maintaining a subordinate staff is to ensure that the beneficiary is relieved from having to primarily perform
non-qualifying duties. Therefore, it is implied that the non-qualifying duties should be performed by a
subordinate staff. The director's suggestion that the subordinate staff should not perform the petitioner's
operational tasks in order to ensure the beneficiary's status as a multinational manager or executive is
erroneous. While the brief list of job duties provided for each of the beneficiary's subordinates is not
sufficient to determine whether either individual was employed in a managerial, supervisory, or professional
capacity at the time of filing, the director's finding that the duties performed were "mundane" will not
contribute to the overall negative determination regarding the petitioner's eligibility for the benefit sought.
, .
Page 5
Second, the director noted that the beneficiary's duties appear to lack sufficient complexity to be deemed
professional in nature. However, neither the statute nor the regulations make any mention about the
beneficiary's job duties having to be professional. While the tenn professional may apply to the beneficiary's
subordinates, with regard to the beneficiary's own position the petitioner need only establish that the
beneficiary's duties would be primarily within a managerial or executive capacity. As each of the above
mentioned findings was erroneous, both are hereby withdrawn.
Notwithstanding the director's flawed analysis, the record supports the director's overall conclusion regarding
the petitioner's inability to establish eligibility for the benefit sought. The director properly included a
discussion of the petitioner's organizational structure, whiyh served as a basis for his finding that the
petitioner lacked the organizational complexity to relieve the beneficiary from having to primarily perform
non-qualifying tasks.
On appeal, counsel disputes the director's findings, contending that the petitioner is adequately staffed with
independently contracted sales representatives who carry out the petitioner's sales functions. However, this
issue was properly raised in the RFE, which specifically addressed the issue of contract labor and allowed the
petitioner the opportunity to provide information and sufficient evidence in support of such claims. Despite
the RFE's direct request, the petitioner failed to provide any evidence of the contract labor now claimed on
appeal. It is noted that the failure to submit requested evidence that precludes a material line of inquiry shall
be grounds for denying the petition. 8 C.F.R. § 103.2(b)(I4). Although the petitioner provides service
agreements showing that it has contracted sales representatives, where, as here, a petitioner has been put on
notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the
AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764
(BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533 (BIA 1988). If the petitioner had wanted the
submitted evidence to be considered, it should have submitted the documents in response to the director's
request for evidence. Id.
Furthermore, even if the AAO were to overlook the petitioner's failure to provide the requested evidence in
response to the RFE, it is noted that the sales agreements provided on appeal were all finalized in January of
2006, approximately eight months after the filing of the Form 1-140. A petitioner must establish eligibility at
the time of filing; a petition cannot be approved at a future date after the petitioner or beneficiary becomes
eligible under a new set of facts. Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971). As such, any
events that took place after the filing of the petition cannot be considered for the purpose of determining the
petitioner's eligibility at the time of filing.
Therefore, despite counsel's assertions, the petitioner failed to provide any documentation to corroborate the
claim regarding the contracted sales representatives. While the MO agrees with counsel's assertion that size
cannot be the sole basis for determining the petitioner's eligibility, the ability of the petitioner to relieve the
beneficiary from having to primarily perform non-qualifying duties is heavily dependent upon evidence of a
sufficient support staff, regardless of whether the support staff is directly employed by the petitioner or
whether it is in the form of contracted labor. In the instant matter, the petitioner has stated that it is a sales­
based operation. As such, the petitioner is expected to explain and provide sufficient corroborating evidence
to establish who is actually performing the essential sales task. In light of the claim that the petitioner has
contracted sales representatives to carry out the function, the director was correct in making adverse findings
when the petitioner failed to provide evidence to show its employment of the claimed contract labor force.
· .
-Page 6
,"
Going on record without supporting documentary evidence is not sufficient for purposes of meeting the
burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter
of Treasure Craft ofCalifornia, 14 I&N Dec. 190 (Reg. Comm. 1972».
Additionally, counsel properly focuses on the beneficiary's job duties, as CIS will look first to the petitioner's
description of the job duties in examining the executive or managerial capacity of the beneficiary. See
8 C.F.R. § 204.5(j)(5). However, counsel's assertion that the petitioner's description of the beneficiary's job
duties is sufficient to establish eligibility is without merit While the petitioner provided a general Mt qj..~e"~
beneficiary's job responsibilities, the RFE specifically instructed the petitioner to provide more specific
information about the beneficiary's actual daily tasks and the amount of time attributed to each task. Specifics
are clearly an important indication of whether a beneficiary's duties are primarily executive or managerial in
"nature; otherwise meeting the definitions would simply be a matter of reiterating the regulations. Fedin Bros.
Co., Ltd. v. Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). Although a
response to the RFE was provided, the petitioner failed to comply with the request for an hourly breakdown
of the beneficiary's duties. As such, the only job description on record for the beneficiary is the general list of
responsibilities, which imply broad discretionary authority, but fail to discuss what actual duties the
beneficiary would primarily perform on a daily basis.
Therefore, the record as presently constituted lacks the necessary information regarding the beneficiary's
specific job duties and fails to document the sales representatives that are purportedly carrying out the
petitioner's essential sales function. Based on the evidence furnished, it cannot be found that the beneficiary
has been or will be employed primarily in a qualifying managerial or executive capacity. For this reason, the
petition may not be approved.
In visa petition proceedings, the burden of proving eligibility for the benefit sought remains entirely with the
petitioner. Section 291 of the Act, 8 U.S.C. § 1361. The petitioner has not sustained that burden.
ORDER: The appeal is dismissed.